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What defines obscenity?
(Personal Opinion by Praveen Dalal, Advocate Delhi High Court)
My personal opinion for the questions posed by Ms Tina Aranha is:
(Q-1) What defines obscenity?
(A-1) The arena of obscenity does not recognise any “gender discrimination” and it covers both
the genders. There is, however, a disturbing trend of harassing the “female gender” by
unreasonably and illegally violating their privacy. It must be appreciated that a nation, which
does not respect its women, cannot be described as a civilised nation at all. Such a nation cannot
grow and develop and will ultimately perish due to its own rudimentary and tyrannical
dogma[1]. Thus, every attempt should be made to eliminate the menace of obscenity from the
society.
The societal interest requires preserving genuine artistic works and arts on the one hand and to
weed out the wild, obscene and pornographic works on the other hand.
The term “obscenity” is, however, not capable of a precise definition and it keeps on changing as
per the norms and ideologies of the contemporary society. That takes us to the “tests” of
obscenity. The tendency of the matter charged as obscene must be to deprave and corrupt those,
whose minds are open to such immoral influences and into whose hands a publication of the sort
may fall is the right test[2]. Though the work as a whole must be considered, the obscene matter
must be considered by itself and separately to find out whether it is so gross and its obscenity so
decided that it is likely to deprave and corrupt those whose minds are open to influences of this
sort.
In this connection the interests of contemporary society and particularly the influence of the
impugned book on it must not be overlooked. Where, obscenity and art are mixed, art must so
preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant
that it can have no effect and may be overlooked. It is necessary that a balance should be
maintained between "freedom of speech and expression" and "public decency or morality"; but
when the latter is substantially transgressed the former must give way. In other cases obscenity
may be overlooked if it has a preponderating social purpose or profit. If on a fair consideration
of these opposite aspects the interest of society prevails, then the work of art or the book must be
preserved, for then the obscenity is overborne[3].
Thus, obscenity may be described as the “culpable aspect of a perverse work”, which is devoid
of any artistic value or public interest. The contemporary morals, ideologies, notions and
standards will determine the “merit” or the “culpability” of the work. Even the most “liberal” and
“open minded” societies cannot allow the obscenity to operate under a blanket protection and
some form of protection is provided by all the countries of the world. The Indian Penal Code,
1860, the Information Technology Act, 2000, etc deals with obscenity in India, which is
interpreted by the Supreme Court in various cases.
(Q-2) If we say we are a free country are laws against obscenity justified?
(A-2) The law regulates the social interests, arbitrates conflicting claims and demands security
of persons and property of the people and is an essential function of the state. It could be
achieved through instrumentality of law. Undoubtedly, there is a cross cultural conflict where
living law must find answer to the new challenges and the courts are required to mould the
sentencing system to meet the challenges. The contagion of lawlessness would undermine social
order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the
object of the law, which must be achieved by imposing appropriate sentence. Therefore, law as a
corner stone of the edifice of “order” should meet the challenges confronting the society. The
social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping
and other offences involving moral turpitude or moral delinquency which have great impact on
social order and public interest, cannot be lost sight of and per se require exemplary treatment[4].
The laws against obscenity are “absolutely justified” as they maintain a delicate balance between
the elimination of “chaotic social pollution” on the one hand and respecting the “freedom of
speech and expression” on the other. These laws also preserve the “privacy rights” of the society
at large.
For instance, honeymooning couples in cheap hotels, lovers in parks, unsuspected young women
bathing in the privacy of their bathrooms are shot either through hidden video cameras or by
youngsters through their camera mobiles. There is hardly any cost involved in it, but each can
fetch anything between Rs 50 to 500[5].
Now if we take an opinion of those whose privacy has been violated they will definitely advocate
for the rigorous application of obscenity law. The same may not hold true about the persons who
believe that there should be an absolute freedom. This is so because their interest is not at stake.
This is, however, a wrong approach since the reputation of every person is equally sacrosanct
and we should respect and preserve the reputation of others with equal rigours and zeal as we
wish to do with ours. Only a perverse mind can derive sadistic pleasure at the cost of others.
None of us should encourage the exploitation of others by the vicious means of obscenity. In the
name of “liberalisation” and “freedom of speech and expression” criminal tendencies degrading
the moral fabric of the nation cannot be allowed to operate. We are custodians of “morality” for
the future generation and we cannot afford to give it a debased, immoral and perverse society as
the heritage. Thus, the bright future requires both negative form of discipline in the form of
punishment and positive form of discipline by voluntarily following and cherishing the morality
and ideals preserved by India from numerous centuries[6].

* Consultant and Advocate, Delhi High Court

[1]
Praveen Dalal, “Revitalising personal laws by judicial codification”, (Under publication).
[2] Cockburn C.J., in Queen Vs Hicklin, (1868) L.R. 3 Q.B. 360.
[3] Ranjit .D. Udeshi v State of Maharashtra, AIR 1965 SC 881.
[4] State of M.P v [Link], AIR 2003 SC 3191.
[5] Bonita Baruah: “ Sex, lives and videotapes”, Sunday Times of India (Delhi edition), page 6,
Dated 05-12-04.
[6] Praveen Dalal, “Privacy rights against private persons”. (Under publication).

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